CISA Publishes CFATS Explosives Removal ANPRM

Today the DHS Cybersecurity and Infrastructure Security Agency (CISA) published an advanced notice of proposed rulemaking in the Federal Register (86 FR 495-498) concerning a proposal for “Removal of Certain Explosive Chemicals From the Chemical Facility Anti-Terrorism Standards”. According to the ANPRM summary CISA is considering “removing all 49 Division 1.1 explosive chemicals of interest from Appendix A of the Chemical Facility Anti-Terrorism Standards (CFATS) regulations.” This removal would effectively terminate the requirement for facilities to report the presence of these chemicals on their facility Top Screen and could result in the removal of some facilities from the CFATS program.

Background

Currently, Appendix A, the list of DHS chemicals of interest, contains 49 Division 1.1 explosive chemicals among the 300+ chemicals that trigger a Top Screen reporting requirement if certain minimum amounts of the listed chemicals are present at a facility. CISA’s Infrastructure Security Compliance Division (ISCD) uses those reports to determine if a facility is at high-risk of terrorist attack and would thus be required to prepare and maintain a site security plan for the protection of those chemicals.

Possession of those Division 1.1 explosive also triggers security and safety regulations of the DOJ’s Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Industry has long maintained that adding the CFATS security requirements burden to facilities that are already fully compliant with ATF regulations is unnecessarily duplicative.

In Appendix A the Division 1.1 chemicals are listed as both Release-Explosive and Theft/diversion-EXP/IEDP security issue chemicals. CISA notes in the ANPRM that it does not currently regulate any chemical facilities due to the Release-Explosive security issue from the listed explosives because ATF storage regulations mitigate the off-site consequences of any potential direct attack on such facilities.

ISCD currently regulates 85 facilities for possession of Division 1.1 chemicals as Theft/diversion security issues. Most of those facilities also have other listed COI that would trigger the CFATS coverage, but there are currently 24 facilities that are only covered under the CFATS program due to the presence of Division 1.1 explosives.

Public Comment

CISA is seeking public comment on their proposal to consider removing these chemicals from Appendix A. They are specifically asking for feedback on four specific questions:

• Should CISA remove Division 1.1 explosives for consideration as a release-explosive security concern? Why or why not?

• Should CISA remove Division 1.1 explosives for consideration as a theft/diversion-EXP/IEDP security concern? Why or why not?

• How would the removal of Division 1.1 explosives impact the security posture of chemical facilities?

• Would the removal of Division 1.1 explosives impact the regulatory burden of CFATS on chemical facilities? If so, in what ways and to what extent?

Comments may be submitted via the Federal eRulemaking Portal (www.regulations.gov; Docket #CISA-2020-0014). Comments should be submitted by March 8^th, 2021

NOTE TO SELF: Reference blog post on January 4^th, 2021, not all rulemakings are required to be submitted to OMB’s Office of Information and Regulatory Affairs before being published in the Federal Register.